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Rakesh Malhotra vs Smt. Krishna Malhotra on 14 May, 2018


F.A. No. 225/2013
Rakesh Malhotra Vs.Smt. Krishna Malhotra

F.A. No. 109/2013
Smt. Krishna Malhotra Vs.Rakesh Malhotra

Gwalior, 14/05/2018
Shri Atul Gupta, learned counsel for the

appellant in F.A. No. 225/2013 and for respondent in

F.A. No. 109/2013

Shri Sanjay Kumar Mishra, learned counsel for

the appellant in F.A. No. 109/2013 and for

respondent in F.A. No. 225/2013.

I.A. No. 4659/2013, an application under Order

41 Rule 5 Code of Civil Procedure, 1908 is taken up

for consideration; whereby, the appellant seeks stay

of operation of permanent alimony of Rs. 13,750/-

per month in lieu of decree of divorce. It is

contended that the respondent of her own volition

had left the association of the appellant and has

been living with her parents, therefore, it is urged,

she is not entitled for the permanent alimony.

Respondent on her turn has denied the

allegation. It is submitted that the permanent

alimony being in the nature of money decree it

cannot be stayed. It is urged that she has a right to

live with dignity. It is urged that the said amount

has been arrived at by the trial Court after taking

into consideration the entire facts including the

status of the appellant and respondent.

Considered rival submissions.

In U. Sree Vs. U. Srinivas [(2013) 2 SCC 114], it is


“33. ……..Be it stated, while granting
permanent alimony, no arithmetic
formula can be adopted as there cannot
be mathematical exactitude. It shall
depend upon the status of the parties,
their respective social needs, the
financial capacity of the husband and
other obligations. In Vinny Parmvir
Parmar v. Parmvir Parmar [(2011) 13
SCC 112] (SCC p. 116, para 12) while
dealing with the concept of permanent
alimony, this Court has observed that
while granting permanent alimony, the
Court is required to take note of the fact
that the amount of maintenance fixed
for the wife should be such as she can
live in reasonable comfort considering
her status and the mode of life she was
used to when she lived with her

husband. At the same time, the amount
so fixed cannot be excessive or affect
the living condition of the other party.

35. …… is the duty of the Court to see
that the wife lives with dignity and
comfort and not in penury. The living
need not be luxurious but
simultaneously she should not be left to
live in discomfort. The Court has to act
with pragmatic sensibility to such an
issue so that the wife does not meet any
kind of man-made misfortune……”

Even in the decision relied by the appellant:

Kalyan Dey Chowdhury Vs. Rita Dey Chowdhury Nee

Nandy [AIR 2017 SC 2383], it is held:-

“16. ….The amount of permanent
alimony awarded to the wife must be
befitting the status of the parties and
the capacity of the spouse to pay
maintenance. Maintenance is always
dependant on the factual situation of
the case and the court would be justified
in moulding the claim for maintenance
passed on various factors…..”

The case at hand when tested on the anvil of

given facts and the principle of law laid down in U.

Sree (supra) and Kalyan Dey Chowdhury (supra), no

case is made out for stay of operation of the

permanent alimony.

Consequently, I.A. No. 4659/2013 fails and is


Being an admitted appeal, let the same be set

out for hearing under the caption “High Court

Expedited Cases (Matrimonial)”.

F.A. No. 109/2013
(Smt. Krishna Malhotra Vs. Rakesh Malhotra)

I.A. No. 2374/2013, an application under

Section 24 of the Hindu Marriage Act, 1955 is taken

up for consideration.

In view of the fact that the appellant is already

in receive of permanent alimony, we find no good

ground to grant maintenance pendente lite.

Consequently, application fails and is dismissed.

List along with F.A. No. 225/2013.

(Sanjay Yadav) (Ashok Kumar Joshi)
Judge Judge

Digitally signed by SHUBHANKAR MISHRA
Date: 2018.05.17 18:23:46 +05’30’

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